A Matter of Dollars and Common Sense

Late Friday evening, December 12, 2008, twelve jurors in Atlanta announced their decisions in the Brian Nichols case, ensuring a life verdict and ending a case with an estimated $6 million price tag. Make no mistake: had the verdict been death, Mr. Nichols would have been entitled to appeal and the costs to the taxpayers of Georgia would have continued to climb.

This case is the most recent example of the increasingly obvious fact that the death penalty costs more than life in prison. This fact is confirmed by study after study. Most recently, Maryland concluded that the death penalty costs approximately $1.9 million more per case than non-capital cases. Other studies in California, New Jersey, North Carolina, Tennessee, Texas and Washington have reached similar conclusions.

The death penalty is so expensive, in part, because of the unique nature of capital trials. A defendant facing death is constitutionally guaranteed the right to present any evidence of his or her character or background that might support a life verdict. In a non-capital trial, the defense and prosecution will prepare only for evidence related to the alleged crime, usually a single moment in time. In capital trials, both sides must prepare to present evidence spanning the entire life of the defendant, which often includes hiring numerous experts. The legal and evidentiary issues are far more complex than in non-capital cases, demanding incredible amounts of attorney time. In the Nichols case, the prosecution devoted five prosecutors to the case preparation, hired eight forensic and psychiatric experts for preparation, and relied on assistance from the sheriff, police, and FBI. They produced 40,000 pages of documents and informed the defense that it might call 400 witnesses.

Another important contributing cost is high number of errors in capital trials. Perversely, capital defendants may be less likely than defendants charged with misdemeanors to receive a fair trial. Because capital crimes necessarily involve allegations of horrific murder, there is enormous community pressure on all of the players — including the police, prosecution, judge and even defense counsel — to push the case to a verdict. This drive can lead to errors — and serious errors lead to reversals on appeal, starting the expensive process of trial preparation all over again. A study of the modern death penalty by Columbia professor Jeffrey Fagan found that the majority of death sentences, 68 percent of all capital cases, are overturned on appeal because of serious error.

State studies of costs have projected additional savings from ending capital punishment. Recent studies in Washington and Maryland concluded that life without parole cases have lower appellate costs than capital ones. (See http://www.deathpenaltyinfo.org/CostsDPMaryland.pdf and http://www.wsba.org/lawyers/groups/finalreportbog.pdf). The security and incarceration costs for inmates sentenced to life without parole are also significantly lower than those for death row inmates. A California study estimated that the state would save $27 million each year in incarceration costs alone if death row were abolished (PDF).

At a time when most states are facing dramatic budget shortfalls as a result of the national recession, governors and legislatures are facing tough economic choices about which vitally necessary services to cut. Georgia itself is facing a budget shortfall in excess of $1 billion. Reports expect schools and health care services to be cut and predict that higher state taxes may be necessary next year. Amidst many hard decisions, ending capital punishment — a broken and exorbitant sentencing option — should be an easy one.